(a) The grantee of any franchise issued pursuant to the provisions of this chapter shall, subject to conditions and restrictions set out in this chapter, be authorized to construct, or have constructed, operate, and maintain a CATV system, and to engage in the business of providing a CATV service in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, and retain, in, over, on, under, upon, across, and along any public street, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and, in addition, so to use, operate, and provide similar facilities or properties lawfully rented or leased from other persons, including,but not limited to, any public utility or other grantee franchised or permitted to do business in the city. It shall be unlawful for any telephone, telegraph, or power company, or any other public utility company or person operating in the city, to lease or otherwise make available to any person any poles, lines, facilities, equipment, or other property for use in connection with the operation of a CATV system or service unless that other person holds a currently valid franchise granted pursuant to the provisions of this chapter.
(b) The grantee may make a charge to subscribers for installation or connection to its CATV system, and a fixed monthly charge for service in accordance with the schedule of rates and charges filed with the city. All rates and charges for basic tier services and associated equipment must be established in accordance with the rules and regulations established by this subsection and must be determined to be within the maximum permitted rates for regulated basic tier cable programming services and equipment. The maximum permitted rates for regulated basic tier cable programming services and equipment shall be determined in accordance with the applicable rules and regulations promulgated by the Federal Communications Commission, as set forth in Subpart N-Cable Rate Regulation of Title 47, Code of Federal Regulations, Part 76.
(1) Basic service tier. Each cable system operator conducting business in the city under a franchise granted by the city shall offer subscribers a basic service tier which shall, at a minimum, include all signals of local commercial television stations, qualified low power stations and noncommercial public or educational television as provided by Sections 614 (47 U.S.C. 534) and 615 (47 U.S.C. 535) of the Communications Act of 1934 as amended, any governmental programming required by the franchise to be carried on the basic tier, and any additional video programming signals added to the basic tier by the cable operator.
(2) Basic and cable programming service tier rates. Basic service tier and associated equipment rates and charges shall be subject to regulation by the city in order to assure that such rates and charges are in compliance with the requirements of 47 U.S.C. 543. Rates or equipment charges that are demonstrated, in accordance with the rules of the Federal Communications Commission, Part 76, Subpart N of Title 47 of the Code of Federal Regulations-Cable Rate Regulation, not to exceed the "Initial Permitted per Channel Charge" or the "Subsequent permitted Per Channel Charge" as described in said regulations, will be accepted as being in compliance. The maximum monthly charge per subscriber for the basic services tier services offered by a cable system operator shall consist of a permitted per channel charge multiplied by the number of channels on the tier, plus a charge for franchise fees. The maximum monthly charges for regulated programming services shall not include any charges for equipment or installations. Charges for equipment and installations are to be calculated separately pursuant to 47 C.F.R. Section 76.923.
(A) Initial permitted per channel charge.
(I) The permitted per channel charge on the initial date of regulation shall be, at the election of the cable operator, either:
A. A charge determined pursuant to a cost-of-service proceeding; or
B. The "benchmark" charge specified in paragraphs 76.922 (b)(1)(ii)(A),(B) or (C) as applicable of Title 47 of the Code of Federal Regulations, as amended, which are hereby incorporated by reference as if fully set out herein: Provided, however, that if within one (1) year of becoming subject to initial regulation of one service tier, a cable system operator becomes subject to initial regulation of another service tier or tiers, the cable operator must elect the same method of determining the permitted per channel charge for all regulated service tiers. The cable system operator must maintain a consistent method for determining the permitted per channel charge across all service tiers for a period of one (1) year from the date that the cable system operator first becomes subject to regulation on either the basic service or cable programming service tiers. Benchmark charges pursuant to 76.922(b)(1) (ii) (A), (B), or (C) shall be applied unless the cable operator elects a charge determined pursuant to a cost-of-service proceeding.
(II) For purposes of this subsection (b) of Section 6-3-7, the initial date of regulation for the basic service tier shall be the date on which local notice is given to the cable system operator that the provision of basic tier is subject to regulation.
(III) For purposes of this subsection (b) of Section 6-3-7, rates in effect on the initial date of regulation or on September 30, 1992, shall be the rates charged to subscribers for service received on that date.
(IV) A per channel rate for the basic service tier that is at, or below, the benchmark level when the cable system becomes subject to regulation are presumptively reasonable and shall be approved by the city. Rates exceeding the applicable benchmark at the time regulation begins are presumptively unreasonable.
(B) Subsequent permitted per channel charge. After the initial date of regulation, the permitted channel charge for regulated programming services shall be, at the election of the cable operator, either:
(I) A per channel rate determined pursuant to a cost-of-service showing, or
(II) The prior permitted per channel charge previously approved by the city or the FCC, adjusted forinflation and external costs in accordance with the price cap requirements set forth in paragraph 4 of this subsection.
(C) Price cap requirements.
(I) Inflation adjustments. Permitted per channel charges for regulated programming services may be adjusted periodically on account of inflation. Adjustments to permitted per channel charges on account of inflation shall be based on changed in the Gross National Product Price Index ("GNP-PI") published by the Bureau of Economic Analysis of the United States Department of Commerce.
(II) External costs. Permitted per channel charges for regulated programming services may also be adjusted for changes in external costs measured on a per channel per subscriber basis. To the extent external cost increases are greater or less than the GNP-PI for the relevant period, the per-channel charge will be adjusted accordingly. Per channel charges may not be increased if external costs increase at a rate less than inflation. Permitted per channel charges also shall be decreased on account of external costs to the extent such costs decrease from previous levels:
A. Categories. External Costs shall consist of costs in the following categories:
1. State and local taxes applicable to provision of cable television service;
2. Franchise fees;
3. Costs of complying with franchise requirements, including costs of providing public, educational, and governmental access channels as required by the city;
4. Retransmission consent fees; and
5. Programming costs.
B. The permitted per channel charge for the basic services tier shall be adjusted on account of programming costs and retransmission consent fees only for broadcast signals offered on the basic services tier.
C. The permitted per channel charge shall not be adjusted for costs of retransmission consent fees or charges in those fees incurred prior to October 6, 1994.
D. The starting date for adjustments on account of external costs for basic tier services shall be the initial date of regulation.
E. Changes in franchise fees shall not result in an adjustment to be permitted per channel charges, but rather shall be calculated separately as part of the maximum monthly charge per subscriber for basic tier services.
F. Adjustments to permitted per channel charges on account of increases in the costs of programming obtained from affiliated programmers, as defined in Subpart N of Part 76 of Title 47 of the Code of Federal Regulations, that exceed inflation as long as the price charged to the affiliated system reflects either prevailing company prices offered in the marketplace to third parties (where the affiliated program supplier has established such prices) or the fair market value of the programming.
G. Adjustments to permitted per channel charges on account of increases in the costs of programming shall be further adjusted to reflect any revenues received by the operator from the programmer.
(3) Rates for equipment and installation used to receive the basic service tier.
(A) The equipment regulated under this subsection consists of all equipment in a subscriber's home that is used to receive the basic service tier, regardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service. Such equipment shall include, but is not limited to:
(I) Converter boxes;
(II) Remote control units;
(III) Connections for additional television receivers; and
(IV) Other cable home wiring.
Subscriber charges for such equipment shall not exceed charges on actual costs in accordance with the requirements of the Federal Communications Commission as set forth in Part 76, Subpart N, of Title 47 of the Code of Federal Regulations, as amended, which is hereby incorporated by reference as if fully set out herein.
(4) A cable system operator shall file its schedule of rates for the basic service tier and associated equipment with the City Clerk within thirty (30) days of receiving written notification from the City of Claremont that the city has been certified to regulate rates for the basic service tier and has adopted the regulations set forth in this subsection (b) of Code Section 6-3-7.
(5) If it has not already done so in accordance with the rules of the Federal Communications Commission, a cable system operator shall provide written notification to subscribers of the availability of basic tier services within three billing cycles from the date of adoption of these rules by the city, and to new subscribers at the time of installation. This notification shall include information that (I) basic tier services is available, (II) the cost per month for basic tier service, and (III) a list of all services included in the basic tier service.
(6) A cable operator shall provide written notice to the city and to all subscribers located within the City of Claremont of any increase in the price to be charges for the basic service tier or associated equipment at least 30 days before any proposed increase is to be effective. The notice shall include the name and address of the City of Claremont as the local franchising authority.
(7) After a cable operator has submitted its existing rates for the basic service tier and associated equipmentcosts to the city, or a proposed increase in these rates (including increases in the baseline channel change that results from reductions in the number of channels in a tier), the existing rates will remain in effect or the proposed rates will become effective after thirty (30) days from the date of submission: Provided, however, that the city may toll this thirty (30) day deadline for an additional time by issuing a brief written order as described is paragraph (8) below within thirty (30) days of the rate submission explaining that it needs additional time to review the rates.
(8) If the city is unable to determine, based upon the material submitted by the cable system operator, that the existing or proposed rates are within the Commission's permitted basic service tier charge or actual cost of equipment as defined in Sections 76.922 and 76.923 of Subpart N of Title 47, Part 76, of the Code of Federal Regulations, or if a cable operator has submitted a cost-of-service showing pursuant to Sections 76.937(c) and 76.924, seeking to justify a rate above the Commission's basic service tier charge as defined in Sections 976.922 and 976.923 of Title 47 of the Code of Federal Regulations, the city may toll the thirty (30) day deadline in paragraph (7) of this subsection to request and/or consider additional information or to consider the comments from interested parties as follows:
(A) For an additional ninety (90) days in cases not involving cost-of-service showings; or
(B) For an additional one hundred fifty (150) days involving cost-of-service showings.
(9) If the city has availed itself of the additional 90 or 150 days permitted in paragraph (8) of this subsection, and has taken no action within these additional time periods, then the proposed rates will go into effect at the end of the 90 or 150 day periods, or the existing rates will remain in effect at such times, subject to refunds if the franchising authority subsequently issues a written decision disapproving any portion of such rates: provided, however, that in order to order refunds, the city must have issued a brief written order to the cable system operator by the end of the 90 or 150 day period permitted in paragraph (8) of this subsection directing the operator to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid.
(10) Within the time deadlines set forth in paragraphs (7) and (8) of this subsection, the city will schedule a public hearing upon the cable system operator's submission of existing initial rates and charges, or proposed increased rates and charges, for basic service tier and associated equipment. Notice of this public hearing shall be given by publication of a notice of the public hearing in a newspaper of general circulation within the City of Claremont at least once a week for two successive weeks immediately prior to the public hearing. At the public hearing, reasonable opportunity shall be afforded for consideration of the views of interested parties.
(11) The city shall issue a written decision in a ratemaking proceeding whenever it disapproves an initial rate for the basic service tier or associated equipment in whole or in part, disapproves a request for a rate increase in whole or in part, or approves a request for an increase in whole or in part over the objections of interested parties. The city shall not issue a written decision that approves an unopposed existing or proposed rate for the basic service tier or associated equipment. Public notice shall be given of any written decision, including releasing the text of any written decision to the public.
(12) A cable system operator has the burden of proving that its existing or proposed rates for basic service and associated equipment comply with 47 U.S.C. 543 and Sections 76.922 and 923 of Title 47 of the Code of Federal Regulations.
(A) For an existing or proposed rate for basic tier service or associated equipment that is within the permitted tier charge and actual costs of equipment as set forth in Part 76, Subpart N of Title 47 of the Code of Federal Regulations, the cable system operator must submit the appropriate FCC form.
(B) For an existing or a proposed rate for basic tier service that exceeds the permitted tier charge as set forth in part 76, Subpart N of Title 47 of the Code of Federal Regulations, the cable operator must submit a cost-of-service showing to justify the proposed rate increase.
(13) The city may require the production of proprietary information to make a rate determination and in such case must apply procedures analogous to 47 C.F.R. 0459 regarding requests for confidentiality.
(14) The city may order a cable system operator to implement a reduction in basic service tier or associated rates where necessary to bring rates into compliance with the standards set forth in Part 76, Subpart N of Title 47 of the Code of Federal Regulations.
(15) The city may prescribe a reasonable rate for the basic service tier or associated equipment after it determines that a proposed rate is unreasonable.
(16) The city may order a cable system operator to refund to subscribers that portion of previously paid rates determined to be in excess of the permitted tier charge or above the actual cost of equipment, unless the operator has submitted a cost-of-service showing which justifies the rate charged as reasonable. Before ordering such refund, the city shall give the cable system operator notice of the proposed order of refund, and an opportunity to comment.
(A) An operator's liability for refunds is limited to a one-year period, except that an operator that fails to comply with a valid rate order shall be liable for refunds commencing from the effective date of such order until such time as it complies with such order.
(B) The refund period shall run as follows:
1. From the date the operator implements a prospective rate reduction back in time to June 21, 1993, or one year, whichever is shorter.
2. From the date the city issues an accounting order pursuant to Section 76.933(c) of Title 47 of the Code of Federal Regulations, and ending on the date the operator implements a prospective rate reduction ordered by a franchising authority, or one year, which ever is shorter.
(C) The cable system operator, in its discretion, may implement a refund in the following manner:
1. By returning overcharges to those subscribers who actually paid the overcharges, either through direct payment or as a specifically identified credit to those subscribers' bills; or
2. By means of a prospective percentage reduction in the rates for the basic service tier or associated equipment to cover the cumulative overcharge. This shall be reflected as a specifically identified, one-time credit on prospective bills to the class of subscribers that currently subscribe to the cable system.
(D) Refunds shall include interest computed at applicable rates published by the Internal Revenue Service for tax refunds and additional tax payments.
(17) Appeals of decisions of the city on rates for the basic service tier or associated equipment involving whether or not the city has acted consistently with the Cable Act or Sections 76.922 and 76.923 of Subpart N, Part 76 of Title 47 of the Code of Federal Regulations, shall be to the Federal Communications Commission pursuant to the rules and regulations of the Commission.
(c) The grantee shall not engage in the sale, service, repair, rental, or leasing of television receivers, radio receivers, parts, or accessories, and shall not require or attempt to influence its subscribers to deal with any particular person in regards thereto.
(d) Construction and maintenance of the CATV system, including house connections, shall be in accordance with the provision of the National Safety Code of the American Insurance Association, and shall be in accordance with all applicable ordinances and regulations of the city.
(e) The grantee shall provide without charge one outlet to each municipally-owned building upon approval of the city manager, and to each public school that is passed by its cable. If more than one outlet is requested at any of those locations, the grantee shall install the additional outlet or outlets at the cost of time and materials only. There will be no monthly service charge at those locations. The grantee shall make its facilities available for use by public and private schools for local-origination programs and for closed-circuit educational films, subject to reasonable rules and regulations pertaining to such use by the grantee, and in such manner as not to unduly interfere with the cable television operations of the grantee.
(f) Grantee shall not make or grant any preferences or advantages to any subscriber, and shall not subject any subscriber or other person to any prejudice or disadvantage. This provision shall not prohibit promotional campaigns to stimulate subscriptions to the system, or other legitimate uses thereof, nor shall it prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within the classification shall be entitled.
(g) All the terms, conditions, and requirements of this entire chapter shall be deemed to be made an integral part of each and every franchise granted hereunder, to the same extent as though set forth in full therein. (Ord. of 5/3/82, No. 48-82; Am. Ord. of 3/8/94, No. 220-94)